This article argues that the law of consumer contracts should permit adults to access the same protections available to children where data about adult performance indicates that the two categories of people are similarly situated within the domain of consumer contracts. In making this claim, this article relies upon a description of capacity articulated by Professor Martha Nussbaum in her important work on the subject. Professor Nussbaum explains that capacity is a function, not only of a person’s innate capabilities, but of a person’s opportunity or ability to deploy those capabilities within environmental limitations. Capacity to contract in a free society has demanded sufficient internal self-control to direct action and make decisions we would expect of a free person vested with a set of important personal rights. Nussbaum’s standard raises the possibility that even people with substantial internal capabilities may not have capacity if the environment in which they are seeking to express their capabilities negates them. This article argues that the law of consumer contracts is one such domain. It therefore argues that this domain should reassign risks between consumers and sellers in the consumer contracting market, where data about adult decision-making in the domain suggests that adults do not have the power to protect their contract rights through reasoned decision-making. It does so as a means of saving the very institution of contract law itself, which is a central mechanism for securing freedom of choice for Americans.
Michael S. Lewis, Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America, 19 U.N.H. L. Rev. 69 (2020).